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Honorable Ben J.Dean. District Attorney’ 90th Judicial District of Texas Breckenridge, Texas
D&r Sir: Opinion No. O-7069
Re: Absentee voting by veterans under the provisions ofArt. VI, Sec. .2a, Constitution of Texas, andArt. 2956, Revised Civil Statutes of Texas
We have your **recent** request for an opinion which reads in part as follows:

“Article 2956 R.S. with reference to absentee voting, provides in sub-division 2thereof that an elector who desires to vote by absentee ballot shall make an application which shall ‘be accompatiied by the poll tax receipt or exemption certificate ofthe elector.’

**“ since**  a man recently in service is not required to secure an exemption and the tax assessor-collector should not issue one Ishould like to ask you the following question: “When a service man whose rights to vote is secured by the constitutional amendment Section 2a, Article VI ofthe Texas Constitution, desires to vote by absentee ballot, in what manner is he to proceed in order to get an absentee ballot, since he does not have an exemption to send with his application for such ballot?”

1nour Opinion No. O-7034, copy ofwhich is enclosed herewith, we carefully considered the effect ofArt. VI, Sec. 2a. ofthe **Con** stitution upon prior election laws, pointing out that this constitutional amendment was adopted after the last session ofthe Legislature and that therefore the Legislature has not amended the old election statutes since its adoption. inthat opinion, although we did not discuss absentee voting, we held that a person who comes within the **terms** ofthe constitutional amendment, and who is otherwise a,qualified voter, is entitled tovote even though he has not paid a poll tax and has not obtained a certificate ofexemption, and even though his **name** does not appear onthe list ofvoters prepared by the tax collector. We further held,in that opinion that ifa person who comes within the terms ofthe constitutional amendment, and who is otherwise a qualified voter, shows by his own oath that he is aHon. Ben J. Dean - Page 2

qualified voter, the election judges cannot legally refuse toaccept his vote. Indiscussing this question, we said:

“Such a person is entitled to vote ‘in any election held under the authority ofthe laws ofthis Stats, during the time the United States is engaged infighting awar, or within one year after the close ofthe calendar year inwhich said war is terminated,’ ifhe shows by his own oath (and in a city or town of 10,000 or more inhabitants, by the oath ofawell-known resident):

“1. That at the time ofthe holding of such election he is, or within 18months immediately prior to the time ofholding such election was, a member ofthe armed forces ofthe United States or oftheArmed Force Reserve of the United States, or ofany branch or component part of such armed forces or Armed Force Reserve, or the United States Maritime Service or the United States Merchant Marine,; and

“2. That he is subject to none ofthe disqualifications stated inArt. VI, Sec. 1, ofthe Constitution of Texas; and

“3. That he has attained the age oftwenty-one years and is a citizen ofthe United States and has resided in this State one year next preceding such election and the last six months within the district or county inwhich such person offers tovote.*’ Art, 2956, Revised Civil Statutes of Texas. provides inpart as follows:

“Subdivision 1. Any qualified elector ofthis State who is absent from the county ofhis residence, or because of sickness or physical disability can not appear atthe poll plac~ein the election precinctof his residence, on the day of holding any general, special, or primary election, may, nevertheless, cause his vote tobe cast at such an election in the precinct ofhis residence by compliance with one or other of the methods hereinafter provided for absentee voting.

“Subdivision 2. Such elector shall make application for an official ballot to the county clerk inwriting signed by the elector, or by awitness at the direction of said elector in case of latter’s inability to make such written application because ofphysical disability. Such application shall be accompanied by the poll tax receipt or exemption certificate ofthe elector, or, inlieu thereof, his affidavit inwriting that’sa- has been lost or mislaid. Ifthe ground ofHon. Ben J.Dean - Page 3

application be sickness or physical disability by reason of which the elector can not appear at the polling place onelection day, a certificate ofa duly licensed physician certifying as to such sickness or physical disability shall acc~ompany the application.

‘Subdivision 3. At any time not more than twenty (20) days, nor less than three (3) days, prior to the date of such an election, such elector making his personal appearance before the county clerk ofthe county ofhis residence at his office and delivering to such clerk his application aforesaid. shall be entitled to receive from said clerk one official ballotwhich has been prepared inaccordance with law for use in such election, which ballot is then and there, in the office of said clerk of said county, and in the presenc’e of said clerk and ofno other person, except the witness who is authorized to assist elector in certain cases as hereinafter provided, to be marked by the elector, or by said witness in case of physical disability of elector, so as to conceal the marking, and same shall, in the presence ofthe clerk, be deposited in a ballot envelope furnished by said clerk. which envelope shall bear upon the face thereof the name, official title and post office address of such county clerk, and upon the other side a printed affidavit in substantially the following forum, to be filled out and signed by the elector; provided, however, that in case ofthe physical disability ofelector preventing him from filling out and signing such affidavit, then thewitness who assisted the elector in marking his ballot shall fill out and sign affidavit for and inbehalf ofelector and shall also sign his, witness’ name as prescribed in the following form:

“State of “County of



### “I, ,do solemnly swear that Iam a Resident of Precinct No. , in County, and am lawfully entitled to vote at the election to be held in said precinct onthe day of I 19 ; that Iam prevented from appearing at the polling plaxsaid Precinct onthe date of such election because of (illness), (physical disability), (or because ofabsence from County), (elector to signify one offoregoing reasons) that the enclosed ballot expresses my wishes, independent ofany dictation or undue persuasion ofany person; that Idid not use anyHon. Ben J. Dean - Page 4

memorandum or device to aid me inthe marking of said ballot.

“Srgnature of elector
“By: Name ofwitness who assisted elector inevent of physical disability.

‘Subdivision 4. At any time not more than twenty (20) days, nor less than three (3) days prior to the date of such an election, such elector who makes written application for a ballot as provided for in Subdivision 2hereof, shall be entitled to have his ballot cast at such an election oncompliance with the following provisions:

“The application, including fifteen cents (15c) to cover postage, shall be mailed to the County Clerk ofthe elector’s residence whose duty it shall be forthwith to mail to such elector ablank official ballot and ballot envelope as provided in Subdivision 3, which ballot shall be marked by elector, or bywitness at the direction of said elector in case ofthe latter’s inability to mark such ballot because ofphysical disability, in the presence ofa Notary Public or other persons qualified under the law to take acknowledgments, and in the presence ofno other person except said witness and/ or such officer, and in such manner that such officer cannot know how the ballot is marked, and such ballot shall then in the presence of such officer be folded by the elector or by said witness in case ofphysical disability of said elector, deposited in said envelope, the envelope securely sealed, the endorsement filled out, signed and sworn toby the elector, or in case of physical disability, then by the said witness for and inbehalf of said elector, and certified by such officer and then mailed by said officer, postage prepaid, to the County Clerk.

“Subdivision 5. Upon receipt ofany such ballot sealed in its ballot envelope duly endorsed, the clerk shall keep the same unopened until the second day prior to such election, and shall then enclose same together with the elector’s application and accompanying papers, m a larger or carrrer envelope whrch shall be securely sealed and endorsed with the name and official title of such clerk, and the words ‘this envelope contains an absentee ballot, and must be opened only at the polls onelection day,’ and the clerk shall forth-Hon. Ben J.Dean - Page 5

with mail same., or ;deliver it in.pe.rson, to,the,presiding judge ofelection,, or to~any,assist.a,nt judge ofelection, in said precinct.

‘,knd ballots mailed out’bythe county clerk within the legal time, butnot received back by him on or before the third day prior to the election on the day ofelection, shall not be voted, but shall remain in the custody ofthe county clerk during the thirty (30) day period provided in Subdivision 6.

“Subdivision 6. Onthe day of such election, and in the presence ofthe election officers, and the supervisors, ifany, one ofthe judges ofelection shall, between the hours of 2:00 and 3:00 o’clock open the carrier envelope only, announce the elector’s name and compare the signature upon the application with the signature upon the affidavit onthe ballot envelope. Incase the election board finds the affidavits duly executed, that the signatures correspond, that fhe applicant LSaduly,qualified elector ofthe precmct, and that he has not voted inperson at said election, they shall open the envelope containing the elector’s ballot in such manner as not to deface or destroy the affidavit thereon, take out the ballot therein contained without permitting **same** tobe unfolded or examined and having endorsed the ballot in like manner as other ballots are required to be endorsed, deposit the same inthe proper ballot box and enter the elector’s name in the poll list the **same** as if he hadbeen present and voted in person. Ifthe ballot be challenged by any election officer, supervisor, party challenger, or other person, the grounds ofchallenge shall be heard and decided acc~ordmg to law, including the consideration ofany affidavits submitted in support ofor against such challenge. Ifthe ballot be admitted, thewords ‘absentee voter’ shall be set down opposite the elector’s name onthe poll list. Ifthe ballot be not admitted, there shall be endorsed on the back thereof the word %ejected,’ and all rejected ballots shall be enclosed, securely sealed, inan envelope onwhich words ‘rejected absentee ballots’ have been written, -together with a statement ofthe precinct and the date~of election, signed.by thejudges and clerks of election and returned inthe same miLMer **as** provided for the return and preservation of official ballots voted at such election. Inall cases, the application poll tax receipt or exemption certificate, ballot envelope and the affidavits and certificates accompanymg same shall be returned by the offmers ofelection to the county clerk who shall keep all such papers except poll tax receipts and exemption certificates for one (1) year and shall return poll tax receipts and exemption certificafes tothe voter at anyHon. Ben J.Dean - Page 6

time after the same have been returned to him except in case ofchallenge when such poll tax receipts and exemption certificates shall be held thirty (30) days and as much longer thereafter as any Court or reviewing authority may direct.

“Subdivision 10. The county clerks, their deputies and officers acting under this Article shall be consrdered as Judges or officers ofelection within the scope ofArticles 215 to 231, inclusive, ofthe Penal Code of Texas, and all amendments thereto, and be pumshable as in sard Articles respectively, provided in the case ofjudges or officers ofelection.” (Emphasis supplied)
Your request presents the problem ofdetermining the effect ofthe constitutional amendment upon the above-quoted provisions ofArt. 2956. Although we have found no court decisions construing the constitutional amendment, the decisions hereinafter discussed illustrate the liberality with which the courts have interpreted the provisions ofArt. 2956.
Inthe case of Stratton v. Hall, 90 S.W. (2d) 865 (El Paso Civ. App. 1936), itwas held that absentee ballots could not be disregarded because ofnon-compliance with Article 2956. Inits opinion, the Court said:

“It appears to bewell settled that in the absence ofa statute prohibiting the counting ofballots because ofirregularities either in preparing or casting, and in the absence of fraud or ofa showing that the returns were changed or tam’- pared with, ballots cast by qualified voters should be counted. Hooker et al. v. Foster et al. (Tex. Civ. App.) I9 S.W. (2d) 911; Ramsay v. Wilhelm (Tex. Civ. App.) 52 S.W. (2d) 757 (writ refused).”
InLee v. Wbitehead. 182 S.W. (2d) 745 (San Antonio Civ,App. 1944) itwas held that an absentee ballot was properly counted, although not accompanied by the required application and affidavit ofthe voter as required by Article 2956, where itwas apparent that such omission was due to no failure on the part ofthe voter.

InState v. Martin,, 186 S.W. (2d) 111 (Amarillo Civ. App. 1945). the Court said:

“Article 2956 ofthe statutes contains provisions for absentee voting and regulations governing the same.
. . . The detailed allegations contained inplaintiff’s petition alleged noncompliance with anumber ofthese provisions.h

Hon. Ben J. Dean - Page 7

.

The statute does not provide that in the case ofviolation ofany ofthe provisions alleged by appellant the ballots shall not be counted.

. . ”

. . . Should the Legislature in its wisdom see fit to provide that for any or all of such irregularities as alleged by appellant, an absentee ballot otherwise valid, should not be counted, that is within its province, but the courts of Texas have throughout the years liberally construed the statutory regulations affecting the right ofa’voter freely to cast his vote in the expression ofhis free choice at an election and, inthe absence of statutory command, will not disfranchise him.”
Itshould be noted that subdivision 10ofArt. 2956, quoted above, provides that county clerks shall be considered as election judges within the scope ofArts. 215 to 231, inclusive, ofthe Penal Code of Texas. hart. 217, Penal Code of Texas, which is one ofthe statutes referred to, provides that:

,‘Any judge ofany election who shall refuse to receive the vote ofany qualified elector who, when his vote is objected to, shows by his own oath that he is entitled tovote, or who shall refuse to deliver an official ballot to one entitled to vote under the law, or who shall wilfully refuse to receive a ballot after one entitled tovote has legally folded and returned same, shall be fined not to exceed five hundred dollars.”
Inour opinion, the constitutional amendment nullifies and renders inapplicable, as to persons who qualify thereunder, all provisions ofArt. 2956 relating to poll tax receipts and exemption certificates. Otherwise, the amendment would be meaningless and ofno effect. Furthermore, it is clear from the cases cited above that failure to comply with all ofthe terms ofthis statute will not disfranchise a qualified voter.

Ifa person swears falsely as to his qualifications, or votes when he knows that he is-notaqualified voter, or votes more than once, he is subject to criminal prosecution. Arts. 232, 234, 236, and 2,41, Penal Code of Texas. And, upon the trial ofacontested election, fraudulent votes are not counted. Art. 3053, Revised Civil Statutes of Texas.

Inour opinion, an absentee ballot cast by a person who qualifies under the constitutional amendment may be counted although not accompanied by a poll tax receipt, an exem- certificate, or an affidavit. However, the voter, in order to preclude any question as to his qualifications, may submit an affidavit, or statement under oath, setting forth his qualifications. Inthe absence of such a statement, neither the countyHon. Ben J. Dean - Page 8

clerk nor the election judges, in case ofchallenge, would be legally bound to accept the ballot. But ifthe voter’s statement under oath shows %hXlie is entitled to vote, his ballot must be accepted; and refusal to receive itwould violate Art. 217 ofthe Penal Code of Texas.

We see no legal objection to the use ofa printed affidavit form containing the requir~ed information, which could be submitted by the voter with his application orwith his ballot and transmitted by the county clerk to the election officials. Approved Feb 23, 1946
/s/ Grover Sellers Attorney General of Texas Yours very truly
ATTORNEY GENERAL OF TEXAS
By /s/ Raymond A. Lynch

Raymond A. Lynch

Assistant RAL:jt/cm
enclosure

Approved Opinion Committee By /s/ BWB Chairman